Spousal and Child Support Flashcards
Spousal Support
Also called maintenance or alimony.
Alimony can be made indefinite or definite period of time.
Alimony obligations cannot be discharged by bankruptcy.
Factors for Spousal Support
- Financial Resources of spouse seeking support (includes property to be awarded, child support, and earning potential)
- Standard of Living (during time of marriage)
- Time (for spouse to find employment or finish education)
- Length of Marriage
- Contributions to Marriage
- Age/Health of Parties
- Marital Misconduct (weight of this support depends on jurisdiction) [NOTE: Misconduct was not a factor in divorce award].
Types of Spousal Support
- Lump Sum [May only be Modified if Fraud is Proven]
- Permanent [for remainder of Spouse’s life][Usually occurs if marriage was “long-term” – some jurisdictions define as longer than 15 years]
- Limited Duration
- Rehabilitative [Only goes for four years–usually associated with finishing degrees or getting employment]
- Reimbursement [Used to account for sacrifices of one spouse during marriage that enhanced standard of living of other spouse. Rarely used.]
- Palimony [Available in few states–allows support to be given between unmarried cohabitants.]
Modification of Spousal Support
Generally, spousal support may be modified–even if it is permanent. Party seeking modification bears burden.
Factors:
- Death–an estate usually does not have to pay spousal support
- Remarriage–in most jurisdictions if spouse receiving spousal support marries then that support is terminated.
- Cohabitation–If spouse receiving support is cohabitating with non-relative then support may be terminated. Weight given if nature of relationship is sexual.
- Retirement–Jurisdictions are split on whether or not support can be modified due to retirement
Marital Presumption
Marital Presumption presumes that child birthed during marriage is a child of that women and her husband.
Extends to artificial insemination so long as father consented.
Estoppel and Paternity
A father who is not the biological father of a child may be estopped from denying his obligation to pay child support if:
- He made a representation that he would provide for the child
- The wife relied on that representation AND
- The wife suffered an economic detriment as a result of the reliance
Personal Jurisdiction and the Uniform Interstate Family Support Act (UISFA)
UIFSA can grant personal jurisdiction over an out-of-state parent by:
- Personal service of parent defendant
- Consent of defendant parent (i.e. appearing in court)
- Past state residency WITH the child in the state
- Past residency AND expenses for child in state
- Residency of child in the state that is a result of action/directive of parent defendant
- Parent defendant had sex in state that may have resulted in conception of child
- Parent defendant asserted he is the father in state registry
- Any other reason for state/federal personal jurisdiction
Calculating Child Support
- Income-Shares Model: Child receives same proportion of income as if parents were still together
- Percent of Income Model (percent for minimum child support)
Court can deviate from model as it sees fit. Other considerations include:
- Age of children
- Unusual needs of child
- Assets of parents
- Medical Expenses/Insurance
- Standard of Living
- Best interest of child
Modification of Child Support
Most jurisdictions allow for modification however a voluntary reduction in income is NOT grounds for modification.
Emancipation of child removes child support
UIFSA Enforcement
The state that issued the order using the UISFA controls. Other states mist comply with that order.
Child Custody Types
Legal Custody: Right of parent to make major decisions
Physical Custody: Right to have child reside in household and obligation to provide for physical needs
Joint custody can be arranged if both parents willing to work with one another
Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)
Purpose is to prevent jurisdictional disputes between states over enforcing child custody. All states except Massachusetts have adopted.
Court must have subject-matter jurisdiction to have order complied with in other states.
Standard for Determining Child Custody
“Best interests and welfare of the child”
Adoption
The legal rights of the natural parents must be terminated before adoption can occur
These rights may be terminated voluntarily or involuntarily.
